This week’s Friday’s Five is reexamining the Families First Coronavirus Response Act (FFCRA) and four new issues addressed by the DOL on July 20, 2020. Plus, (because I needed an additional point to make this five points), I reexamine the DOL’s definition of “individual” as used in qualifying reason number three for EPSLA. Many employers are dealing with these questions as they are fighting to reopen their businesses across the country, and it is a good time to re-familiarize oneself with the guidance issued by the DOL.
Questions 94 to 97 are summaries of the DOL’s questions and answers issued on July 20, 2020, and the final question is the reexamination of the prior guidance, but is a question we have been dealing a lot with recently.
Question #94: Issue regarding employer’s concerns of employee who has taken paid sick leave under the FFCRA and is returning to work. The employee has been taking care of a sick family member. Can the employer require the employee to telework or take leave until they test negative for COVID-19?
DOL states that it depends. The DOL sets forth the following guidance:
- The employer may reinstate employee to an equivalent position that requires less interaction with co-workers or require him to telework.
- May require the employee to telework or take leave until he has tested negative for COVID-19, regardless of whether the employee has taken any time of leave. The DOL cautions employer that they cannot require employees to take be tested for COVID-19 simply because the employee took FFCRA leave.
Question #95: Issue of where an employee has used all 80 hours of paid sick leave under the FFCRA before being furloughed, and now the employer is recalling the employee. Does the employee have additional paid sick leave to use once they return to work?
No. The DOL explains that employees are limited to a total of 80 hours of paid sick leave under the FFCRA.
Question #96: Issue of an employee who has taken four weeks of expanded family and medical leave before being furloughed, and is now being recalled by her employer. If the employee still needs to care for her child because the child care provider is unavailable for COVID-related reasons, how much expanded family and medical leave does the employee have to use?
The DOL explains that employees are entitled to 12 weeks of expanded family and medical leave. If the employee has used four weeks before being furloughed, when she returns to work she will have eight additional weeks available.
The DOL also notes the following regarding re-certification by the employee for the reason of the leave:
Because the reason your employee needs leave may have changed during the furlough, you should treat a post-furlough request for expanded family and medical leave as a new leave request and have her give you the appropriate documentation related to the reason she currently needs leave. For example, before the furlough, she may have needed leave because her child’s school was closed, but she might need it now because her child’s summer camp is closed due to COVID-19-related reasons.
Question #97: Issue of an employer who furloughed all employees, and now the quarantine order has been lifted and employees are returning to work. Can the employer extend one employee’s furlough because he would need to take additional FFCRA leave to care for his child?
No. The DOL explains that employers cannot discriminate or retaliate against employees (or prospective employee) for “exercising or attempting to exercise their right to take leave under the FFCRA.” The employer cannot assume the employee will make a request, and use this as a factor in deciding whether to recall the employee from furlough.
Question #63: What type of relationship does an employee must have with an “individual” to qualify for paid leave under reason #4 of the Emergency Paid Sick Leave Act?
This guidance has been issued well before the July 20 guidance set forth above, but there have been a few issues arising with this and wanted to address. The DOL explains that employees can qualify for EPSLA if they care for an individual who, as a result of being subject to a quarantine or isolation order, is unable to care for themselves and depends on the employee for care. By providing the care, the employee is then prevented from working or teleworking. The DOL sets forth that an “individual” “includes an immediate family member or someone who regularly resides in your home. You may also take paid sick leave to care for someone if your relationship creates an expectation that you would care for the person in a quarantine or self-quarantine situation, and that individual depends on you for care during the quarantine or self-quarantine.” Paid sick leave would not apply for caring for someone where there is no relationship, or if the person does not expect or depend on the employee’s care.
For the full list of the DOL’s questions and answers (and the full text of the Q&A), visit the DOL’s website here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions